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In re Estate of Vess

Court of Special Appeals of Maryland

September 28, 2017

IN THE ESTATE OF HOWARD LEWIS VESS IN RE: ESTATE OF HOWARD LEWIS VESS

         Circuit Court for Prince George's County Case No. CAL 15-08368

         Orphans' Court for Prince George's County Estate No. 87911

          Meredith, Arthur, Leahy, JJ.

          OPINION

          Arthur, J.

         Nearly six years ago, Claudia Vess commenced caveat proceedings in the Orphans' Court for Prince George's County. After several years of litigation, the orphans' court transmitted five issues to the circuit court for a jury trial.

         Ms. Vess took a de novo appeal to the Circuit Court for Prince George's County. The circuit court ruled against her. Ms. Vess appealed from that judgment in In the Matter of Estate of Howard Lewis Vess, No. 372, Sept. Term 2016. For the reasons set forth in this opinion, we reject her challenge to the circuit court judgment and the underlying order to transmit issues.

         After the circuit court entered judgment in the de novo appeal, the orphans' court entered an order "re-submitt[ing]" the issues for trial. In Claudia Vess v. Robert Price, Jr., No. 524, Sept. Term 2016, Ms. Vess appealed directly to this Court from that orphans' court order. We also reject her challenge to that order.

         The combined result of both determinations is that this case can finally proceed to a trial in the circuit court on the issues as framed by the orphans' court.

         Factual and Procedural Background

         A. The Last Will and Testament Dated August 11, 2006

         Howard Vess died on June 10, 2011, at the age of 89. He was a widower and had no children.

         Mr. Vess's wife, Katherine, predeceased him in February 2006. Before her death, she had been the principal beneficiary of his two, prior wills.

         About six months after his wife's death, Mr. Vess engaged an attorney to prepare a new will. That document is titled "Last Will and Testament of Howard L. Vess" and dated August 11, 2006.

         Mr. Vess's 2006 will revoked all of his prior wills and codicils. He made one specific legacy in the amount of $10 to his brother, provided that he survived Mr. Vess. The only other gift provision was a residuary clause, in which Mr. Vess devised the remainder of the estate to his "good friend, ROBERT V. PRICE, JR., or his issue." The 2006 will named Mr. Price as personal representative, and named Mr. Price's wife as a substitute personal representative.[1]

         Mr. Vess's brother died in 2009. He had three surviving children: Claudia, Brian, and Debra.

         A few weeks after Mr. Vess's death in 2011, Mr. Price filed a probate petition with the Register of Wills for Prince George's County. He requested administrative probate of the will dated August 11, 2006. He listed Claudia Vess as an interested person and identified her as Mr. Vess's surviving niece and a potential heir.

         The Register of Wills granted Mr. Price's request that he be appointed as personal representative of the estate. In addition, the Register docketed the two prior wills and two prior codicils, each of which had been filed with the Register for safekeeping.[2]

         B. Claudia Vess's Petition to Caveat the 2006 Will

         On December 28, 2011, Howard Vess's niece, Claudia Vess, filed a petition to caveat in the Orphans' Court for Prince George's County. She requested that the 2006 will be declared invalid and that "any previous will be declared valid." She asserted that her interest in the estate was "based on any previous will executed by [Mr. Vess] or by intestacy."

         In the caveat petition, Ms. Vess asserted that the document dated August 11, 2006, was not Mr. Vess's last will and testament. Her petition alleged: that Mr. Vess lacked testamentary capacity and was not of sound and disposing mind at the time of execution; that the instrument was not executed and witnessed properly; that the signature on the document was not Mr. Vess's signature; that the instrument was procured by fraud; and that the instrument was procured by the exercise of undue influence of Mr. Price, who allegedly maintained a confidential relationship with Mr. Vess. Although Ms. Vess did not include the allegation in her petition, her other submissions assert that Mr. Price established a confidential relationship with Mr. Vess by serving as his financial advisor.

         The caveat petition included a request that Mr. Price "be required to answer" the petition. Maryland Rule 6-432(a) states that, within five days after the filing of a petition to caveat, the register of wills must "issue an Order to Answer requiring the personal representative . . . to respond to the petition to caveat within 20 days after service[.]" Rule 6-432(b) requires the register of wills to serve that order and the caveat petition on the personal representative. In this case, the register did not issue such an order within that time period.

         Nevertheless, on the twentieth day after Ms. Vess had filed her petition, Mr. Price responded by filing a motion to dismiss the petition based on lack of standing. Mr. Price contended that Ms. Vess would have no direct interest in the estate even if she succeeded in invalidating the 2006 will. He informed the court that Ms. Vess was not a legatee under the several prior wills and codicils and that she would be entitled to receive estate property through intestate succession only if she successfully invalidated each of those instruments, which she had not attempted to do. He argued that, absent some basis for invalidating the prior wills, Ms. Vess's interest in the estate was too remote to allow her to pursue the caveat.

         In her response to the motion, Ms. Vess stated that she was "only seeking to ensure her uncle's wishes are honored fully, whether or not she receives any gain for herself arising out of . . . her possible heir status." She argued that her interest "based by intestacy should provide sufficient standing" to caveat the will.

         In April 2012, several months after the filing of the petition, the Register of Wills issued notice of the caveat petition to Mr. Price, as an interested person. The notice stated that, if Mr. Price wished to respond to the caveat petition, he was required to do so "within 20 days after service of this notice[.]" The Register also issued an Order to Answer to Mr. Price, instructing him, as the personal representative, to "respond to the petition to caveat no later than 20 days after service." Mr. Price did not file an additional response to the caveat petition at that time, because he had already responded through his motion to dismiss.

         After a hearing, the orphans' court dismissed the caveat petition, concluding that Ms. Vess lacked standing to challenge the 2006 will. The court reasoned that, if Ms. Vess prevailed in the caveat proceedings, the prior wills would be offered for probate, but that she would receive nothing under either of those wills. The court noted that Ms. Vess had raised no question as to the validity of the prior wills.

         Ms. Vess took a de novo appeal to the circuit court. The circuit court reversed the dismissal of the caveat petition and remanded the case to the orphans' court. In its opinion, the circuit court reasoned that, even though Ms. Vess had only a "slight chance to inherit" by invalidating each of the successive wills, her status as an heir-at-law was itself a sufficient interest for her to pursue the caveat proceeding. Although Mr. Price could have appealed from the circuit court's judgment to this Court, he did not do so.[3]

         C. The Petition to Transmit Issues

         After the case returned to the orphans' court, the court held a hearing in October 2013 on the status of the caveat proceedings. In open court, Ms. Vess and Mr. Price submitted a joint petition asking the orphans' court to transmit five issues to the circuit court for a jury trial: (a) whether Howard Vess was competent to make the 2006 will; (b) whether the will was procured by the exercise of undue influence; (c) whether the testator's signature on the will was genuine; (d) whether the will was attested and signed by two credible witnesses in his presence; and (e) whether the will was procured by fraud. The orphans' court filed a hearing sheet, which stated that the joint petition had been "granted" and that the judge intended "to prepare [an] order" to transmit issues.

         Two months later, however, before the court finalized the written order to transmit issues, Ms. Vess filed a line in the orphans' court withdrawing her support for the joint petition. For the first time, she complained that Mr. Price had never filed a formal "answer" denying the allegations of her petition. She contended that "[t]ransmission of the issues first requires an answer to the Petition to Caveat which establishes the existence of a factual controversy."

         Immediately upon learning of Ms. Vess's attempt to withdraw her support for the joint petition (and, in fact, two days before she filed the line with the orphans' court), Mr. Price filed a formal answer to the caveat petition. In addition to denying specific allegations, he represented: that the 2006 will was executed properly by Mr. Vess and attested by two witnesses, that Mr. Vess had the requisite testamentary capacity at the time the will was executed, and that the will had not been procured by fraud or undue influence. Mr. Price signed a statement verifying the contents of his answer under penalty of perjury.

         D. The "Order of Default" in the Caveat Proceeding

         Soon after Mr. Price filed his answer, Ms. Vess moved to strike it on the ground that it was untimely. She contended that Mr. Price was required by Rule 6-122(b) to file "[a]ny response" to the caveat petition "within 20 days after service" of the petition. She argued that entry of an order of default would be "appropriate" upon the striking of Mr. Price's answer.

         Recognizing that the Maryland Rules do not authorize an orphans' court to render judgment by default, Ms. Vess asked the orphans' court to apply the rules that govern pleadings in civil cases before the circuit court. Ms. Vess relied on Rule 6-461, which makes certain Title 2 rules applicable in the orphans' court and permits the orphans' court to "apply other rules" from Title 2 "on petition of a party . . . and after notice to all persons who may be affected by the proceeding and an opportunity to be heard[.]" Md. Rule 6-461(d). Specifically, Ms. Vess requested that the orphans' court apply Rule 2-613(b), which authorizes the circuit court to "enter an order of default" where "the time for pleading has expired and a defendant has failed to plead[.]"

         Mr. Price opposed the motion, arguing primarily that Rule 2-613 did not apply to proceedings in the orphans' court. In fact, at the time of the motion, Mr. Price was no longer in "default, " because he had filed an answer two months earlier. Rule 2-613 includes no provision authorizing the court to strike a pleading so as to create a default.

         Nonetheless, the orphans' court granted Ms. Vess's motion without a hearing, struck Mr. Price's answer, and directed that an "order of default" be entered against him, subject to his right to move to vacate the "order of default" within 30 days after its entry.

         Although Mr. Price continued to argue that Rule 2-613 did not apply, he made a timely motion to vacate the "order of default." He argued that the untimeliness of his answer should be excused under the circumstances and that the record demonstrated "a substantial and sufficient basis for an actual controversy as to the merits of the action" under Rule 2-613(e). In support, he relied on the verified answer that he had filed before the "order of default" was even entered, the discovery requests and responses that the parties had exchanged, [4] and the parties' agreement to submit a joint petition for issues, to which he pointed as "an acknowledgement" by Ms. Vess that those issues were contested. He argued that the will was "presumptively valid" because it had an attestation clause and that Ms. Vess would bear the burden of proving otherwise. He asked the court to vacate the "order of default, " to accept his answer for filing, and to transmit the contested issues to the circuit court for trial.

         At a hearing on October 22, 2014, the orphans' court granted Mr. Price's motion to vacate the "order of default." At the court's direction, the Register of Wills made a docket entry stating that the orphans' court had granted the motion and that the court would prepare an order to transmit issues. On the same day, the court entered a written order transmitting five issues to the circuit court. The issues were the same issues that the parties originally framed in the joint petition.

         E. Ms. Vess's Post-Judgment Revisory Motion to the Orphans' Court

         Although Ms. Vess had the right to appeal the order transmitting issues (see, e.g., Hegmon v. Novak, 130 Md.App. 703, 711 (2000)) either to this Court[5] or to the circuit court, [6] she did not do so. Instead, she filed a post-judgment motion, in which she asked the orphans' court to exercise its revisory powers under Maryland Rules 2-534 and 2-535, which apply to "a final order" of an orphans' court. See Md. Rule 6-461(d). She argued that the order was fully subject to revision because the judgment had "los[t] its finality upon the filing of the . . . Motion pursuant to Rule 2-534 and/or 2-535 within 10 days" after the entry of the judgment.

         The orphans' court, however, did not receive Ms. Vess's motion by Monday, November 3, 2014, the tenth day after the entry of its judgment.[7] The Register of Wills stamped the document to indicate that it was received on November 6, 2014, and made a docket entry noting that the document had been filed on November 6, 2014.

         Ms. Vess's post-judgment motion included what she characterized as an "alternative motion" to amend the issues. She cited Rule 6-434(d), which authorizes the orphans' court, "[u]pon petition, " to "amend, supplement or modify issues previously transmitted to a circuit court." The court had transmitted two questions asking, respectively, whether the 2006 will had been procured by fraud or undue influence. Ms. Vess asked the court to modify the questions to ask whether the will was partially invalid on those grounds.

         On January 12, 2015, the orphans' court entered an order denying Ms. Vess's post-judgment motion "in whole[.]" Thirty days after the entry of that order, Ms. Vess filed a notice of de novo appeal to the circuit court.

         F. De Novo Appeal in Circuit Court from the Order to Transmit Issues

         After the circuit court received the record from the orphans' court, Mr. Price filed what he called a "Motion for Summary Judgment" in the circuit court. In essence, he argued that the order transmitting issues was correct and that the circuit court should uphold the judgment on the merits.

         In addition to his main argument on the merits, Mr. Price asserted that Ms. Vess had failed to note a timely appeal from the order to transmit issues. He observed that Ms. Vess had not filed a notice of appeal within 30 days after the orphans' court entered that order on October 22, 2014. He argued that, although a revisory motion filed within 10 days of the date of judgment may extend the time for noting an appeal, Ms. Vess had not filed her motion within that 10-day period. He relied on the docket entry showing that Ms. Vess had filed her post-judgment motion on November 6, 2014, 15 calendar days after the entry of judgment. On that basis, he contended that "the appeal must be dismissed" by the circuit court.

         In response, Ms. Vess argued that her appeal was timely as to the order to transmit issues. She claimed that her attorney "filed the Motion to Alter or Amend" with the orphans' court "on November 3, 2014 by placing the Motion in the overnight box of the Circuit Court." She submitted a separate motion to the circuit court, styled as a "Motion to Correct Estate Docket."

         During a hearing on the dispositive motion, Ms. Vess's attorney offered a billing record indicating that he had submitted the post-judgment motion on the night of November 3, 2014. He believed that the original version of the motion had a time-stamp from the circuit court, but the stamp was not visible on the copies sent from the orphans' court as part of the de novo appeal.

         The hearing judge stated that he was familiar with the circuit court's night box, which he described as "a wooden box in the commissioner's office where pleadings can be deposited after hours[.]" The judge stated that he was unaware that the orphans' court used a night box. In response, Ms. Vess's attorney claimed that a circuit court employee "generally" separates the circuit court filings from the orphans' court filings and does something (it is not clear what) to ensure that the orphans' court filings "get" to the orphans' court.

         The circuit court concluded that the docket entries were "presumptively correct" and that those entries were "dispositive evidence" of the filing date of November 6, 2014. The court reasoned that the presumption of correctness could not be rebutted by presenting a "lawyer's bill for the time spent going on the date to file it." The court announced that it would grant Mr. Price's "motion for summary judgment" and that the "whole appeal" would be "dismissed." The court denied all other pending motions, including the motion to correct the estate docket, on the ground that they were "moot."

         In her written opposition, Ms. Vess had argued that, even if her motion to alter or amend was not timely, her post-judgment motion had included timely "alternative motions" to revise the judgment under Rule 2-535(a) and to amend the issues previously transmitted under Rule 6-434(d). She argued that her appeal was timely at least as to the denial of those motions and, therefore, that the circuit court had the authority to reconsider the underlying orphans' court orders.

         After the court announced during the hearing that it was "dismissing everything, " counsel for Ms. Vess asserted that her appeal was "still viable" as to the petition to amend the issues that were to be transmitted. Her attorney did not, however, elaborate on why he believed that the issues needed to be amended. The circuit court said that it would consider those other matters if Ms. Vess raised them in a timely motion.

         On November 10, 2015, the circuit court entered a written order granting Mr. Price's "Motion for Summary Judgment" and remanding the matter "to the Orphans' Court to certify and send issues to [the circuit court] as framed by Order of Orphans' Court dated October 22, 2014." The court also entered a separate order denying Ms. Vess's motion to correct the estate docket as "moot."

         G. The Motion for Reconsideration ...


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